The term defamation is defined as “Holding up to a person to ridicule, scorn or contempt in a respectable and considerable part of the community; may be criminal as well as civil. Includes both libel and slander. Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him. Statement which exposes person to contempt, hatred, ridicule or obloquy. The unprivileged publication of false statements which naturally and proximately result in injury to another. A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. The meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.”
With regard to falsity the law is that if the matter is defamatory falsity is presumed until it is proved to be true. Words are prima facie defamatory when their natural, obvious and primary sense is defamatory, but there may be words and expressions which are prima facie innocent but in their secondary or latent meaning they may be defamatory.
There may be oblique references, suggestions and insinuations which may be no less defamatory merely because they are coached in language which prima facie is innocent. Apart from the allegations of fact there may be comments and these may themselves become defamatory if they do not come within the description of fair comment on a matter of public interest. And where the imputation is false or the comment is not fair and bona fide it would be deemed to be malicious; the maliciousness in law consisting of doing a thing without just cause or excuse. A matter will be deemed to be defamatory if it exposes the plaintiff to hatred, contempt ridicule or tends to injure him in his profession or trade. The words of the libel and the circumstances attending its publication themselves afford evidence of malice in fact.
An imputation harms a person’s reputation which in the estimation of others directly or indirectly either:
lowers his / her moral or intellectual character; or
lowers his / her character in respect of his / her caste or calling or his / her credit; or
causes it to be believed that his / her body is in a loathsome state, or in a state generally considered disgraceful.
Spoken words, even if defamatory, do not amount to a crime under the English law, except when they are seditious, blasphemous, grossly immoral or obscene. The Penal Code makes no distinction between spoken and written defamation. Nor does it recognize the distinction of English law whereby under certain circumstances, words might be libelous if written, but are not slanderous if spoken.
The English Doctrine that libel is an offence because it tends to a breach of the peace is not adopted in the Code. The definition in the Code applies to words as well as writings. The defamatory matter must be published i.e. communicated to a person other than the one defamed. According to the English law, if such matter is communicated to the person defamed it will be sufficient for an indictment, if it is likewise to provoke a breach of the peace. The person who makes the imputation intending to harm the reputation of another, as well as the person who publishes are alike guilty. The publisher need not be the maker of the defamatory matter.
Judge: A judge cannot be prosecuted for defamation for words used by him whilst trying a case in court even though such words are alleged to be false, malicious and without reasonable cause.
Counsel or pleader: Criminal proceedings can be instituted against a counsel or pleader for uttering words that are defamatory, or are calculated to hurt the feelings of others or are absolutely devoid of all solid foundation. The Bombay High Court has held that so long as an advocate acts on his instructions he has the fullest liberty of speech (Bhaisanker v. Wadia) 2 Bom. L R 3. Where express malice is absent, the advocate or pleader would be protected. (In re: Nagrriji Trikamji 19 B 340.
The following acts are made punishable: (1) Printing or engraving matter known to be defamatory, (2) Sale of printed or engraved substance containing defamatory matter.
Defamation according to Pakistani Law
Defamation Ordinance 2002 covers all matters pertaining to defamation accrued in Pakistan:
Section 3 of the Defamation Ordinance 2002 defines defamation and its forms:
Any wrongful act or publication or circulation of a false statement or representation made orally or in written or visual form which injures the reputation of a person, tends to lower him in the estimation of others or tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred shall be actionable as defamation.
Defamation is of two forms namely: (i) Slander and (ii) Libel
Any false oral statement or representation that amounts to defamation shall be actionable as slander.
Any false written documentary or visual statement made either by ordinary form or expression or by electronic or other modern means or devices that amounts to defamation shall be actionable as libel.
Section 4 makes the Defamation actionable:
The publication of defamatory matter is an actionable wrong without proof of special damage to the person defamed and where defamation is proved, damage shall be presumed.
Defences to the law of defamation have been provided in Section 5
In defamation proceedings a person has a defence if he shows that:
he was not the author, editor, publisher or printer of the statement complained of;
the matter commented on is fair and in public interest and is an expression of opinion and not an assertion of fact and was published in good faith;
it is based on truth and was made for public good;
assent was given for the publication by the plaintiff;
offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff;
an offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff;
the matter complained of was privileged communication such as between lawyer and client or between persons having fiduciary relations; and
the matter is covered by absolute or qualified privilege.
According to Section 6 of the Defamation Ordinance certain acts of the government does not come within the ambit of defamation, these are called absolute privileges: Any publication of statement made in the Federal or Provincial legislatures, reports, papers, notes and proceedings ordered to be published by either House of the Parliament or by the Provincial Assemblies, or relating to judicial proceedings ordered to be published by the Court or any report, note or matter written or published by or under the authority of a Government, shall have the perfection of absolute privilege.
Explanation: In this section legislature includes a local legislature, and Court includes any Tribunal or body exercising the judicial powers.
Section 7 exempts certain things from defamation, these are called qualified privileges: Qualified Privilege: Any fair and accurate publication of parliamentary proceedings, or judicial proceedings which the public may attend and statements made to the proper authorities in order to procure the redress of public grievances shall have the protection of qualified privileges.
Section 8 prescribes that notice of action must be given by the plaintiff to the defendant before any legal action would be taken by the plaintiff against the defendant: No action lies unless the plaintiff has, within two months after the publication of the defamatory matter has come to this notice or knowledge, given to the defendant, fourteen days notice in writing of his intention to bring an action, specifying the defamatory matter complained of.
Section 9 gives remedies in case the defamation is proved: Remedies: Where Defamation shall be proved to have occurred, the Court may pass order directing the defendant to render an apology, if acceptable to the plaintiff, and publish the same in similar manner and with the same prominence as the defamatory statement made and pay reasonable compensatory damages as general damages with a minimum of Rs. 50,000 (Rupees fifty thousand) and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the Court.
Section 10 says that CPC and Qanoon-e-Shahadat Order will apply mutatis mutandis to the defamation proceedings.
Section 11: Ordinance not to prejudice action for criminal defamation: Nothing in this ordinance shall prejudice any action for criminal liable or slander under any law for the time being in force.
Section 12: Limitation for doing an action against:
an author, editor, proprietor or publisher of a newspaper;
the owner of broadcasting station;
an officer, servant or employee of the newspaper or broadcasting station; or
any other person.
for defamation contained in the newspaper or broadcast from the station or its publication otherwise shall be taken within 6 months after the publication of the defamatory matter come to the notice or knowledge of the person, defamed.
Section 13: Trial of Cases: The District Court shall have the jurisdiction to try cases under this ordinance.
Section 14: Court to decide cases expeditiously: The Court shall decide a case under this Ordinance within a period of ninety days.
Section 15: An appeal against the final decision and decree of the Court shall lie to the High Court within 30 days and the High Court shall decide the appeal within sixty days.
Provided that no appeal shall lie against an interlocutory order of the Court.
Section 499 through Section 502 of the Pakistan Penal Code elaborates the definition, explanation, exceptions and punishment to the Law of Defamation in Pakistan.
According to Section 499 of the Pakistan Penal Code, 1860, Defamation has been described as under:
Whoever by words either spoken or intended to be read, or by sign or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
Explanation 1: It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be harmful to the feelings of his family or other near relatives.
Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4: No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly in the estimation of others, lower the moral intellectual character of that person in respect of his caste or of his calling, or lowers the credit of that person or causes it to be believed that the body of that person is in loathsome estate, or in a state generally considered as disgraceful.
There are certain exceptions to the section aforementioned:
First Exception: Imputation of truth which public requires to be made or published: It is not defamation to impute anything which is true concerning any person if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception: Public conduct or public servants: It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception: Conduct of any person touching any public question: It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, as far as his character, appears in that conduct, and no further.
Fourth Exception: Publication of reports of proceedings of courts: It is not defamation to publish a substantially true report of the proceedings of a court of justice, or of the result of any such proceeding.
Explanation: A justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice is a Court within the meaning of the above section.
Fifth Exception: Merits of case decided in Court or conduct of witness and other concerned: It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Sixth Exception: Merits of public performance: It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation: A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
Seventh Exception: Censure passed in good faith by person having lawful authority over another: It is not defamation if a person having over another any authority, either conferred by law or arising out of a lawful contract made with that another, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Eighth Exception: Accusation preferred in good faith to authorized person: It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Ninth Exception: Imputation made in good faith to person for protection of his or other’s interests: It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.
Tenth Exception: Caution intended for good of person to whom conveyed or for public good: It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person interested or for the public good.
According to Section 500 of the Pakistan Penal Code, 1860 punishment for defamation has been described here whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
Printing or engraving matter known to be defamatory: Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years or with fine, or with both.
Sale of printed or engraved substance containing defamatory matter: Whoever sells or offer for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
Word “defamation” in Section 12 (3) of the West Pakistan Press & Publications Ordinance, 1963 is used in context of offence as referred to in Section 499, P.P.C. and not in its dictionary sense. In order to found an action for libel it must be proved that the statement complained of is:
Defamation has to be tried by the District Court under Section 13 of the Defamation Ordinance, 2002. Section 3 of this ordinance prescribes that defamation means to make a false statement causing injury to the reputation of a person or to bring him in ridicule, unjust criticism and dislike. A distinction in this context needs to be drawn between the statement, which is not proved and one which is explicitly found to be false for the purposes of Defamation Ordinance, 2002. All benefits under criminal law are to be granted to an accused and the prosecution must establish its case beyond a reasonable doubt. Very strong burden of proving a statement is to be discharged by the plaintiff in a suit for damages and the mere fact that it could not be proved does not necessarily show that it was false. If such a distinction is obliterated every accused granted the maximum benefit of doubt may upon acquittal bring an action for defamation, which does not appear to be the intention of law.
Requisites To The Law Of Defamation
(1) Publication – an essential ingredient
Under the Penal Code in order that an offence of defamation may be committed there must be making or publication of any imputation concerning any person by words either spoken or intended to be read, or by signs or by visible representations, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person. To constitute the offence of defamation there must, be making or publication of an imputation concerning any person and the making or publication must be with intent to harm or knowing or having reason to believe that such imputation will harm, the reputation of such person. Unless there is publication there can be no offence of defamation committed. It must be remembered that the Indian Penal Code exhaustively codifies the law relating to offences with which it deals and the rules of the common law cannot be resorted to for inventing exemptions which are not expressly enacted.
(2) Makes or publishes
Section 499 brings under the criminal law the person who published as well as the person who makes the defamatory imputation. So there can be no offence of defamation unless the defamatory statement was either made or published by the accused. Section 499 emphasizes the words “makes or publishes”, if there is no evidence that the petitioner had either made or published the defamatory imputation, then there is an end of the matter and the further question of justification or whether there was express malice will not arise. The offences then lie in the dissemination of harmful information concerning another. This is expressed in the section by the words “makes or publishes”. The word “makes” is intended to refer to the originator of the imputation, but it is equally applicable to one who, though not its author, repeats, writes or copies it. The word “makes” is intended to supplement the sense of “publishes”, which is, no doubt, used here in its etymological sense as connoting “to make public or to make known to people in general”.
(3) Journalists in better position than any other person
Journalists are in a better position than any other person. Even the truth of an allegation does not permit a justification under first exception to Section 499 unless it is proved to be in the public good. The question whether or not it was for public good is a question of fact like any other relevant facts in issue.
(4) How made
The last essential requisite for action of defamation is the publication of the defamatory words. This consists of communication to others. Hence, if the words complained of are only communicated to the plaintiff who is defamed, there is no publication. For defamation is the injury to reputation; therefore, the wrong is only done when others are informed against the plaintiff which affect their opinion about him. Publication to third party is the essence of libel.
There will be no defamation if only the plaintiff is informed of the defamatory words. His opinion about himself is no consideration. It is what others think about him. Therefore the communication of the defamatory words to at least one other person is enough to injure the reputation. As remarked by Lord Esher, M.R., that “publication” is “the making known of the defamatory matter, after it has been written, to some person of whom it is written. If the statement is sent straight to the person of whom it is written there is no publication of it”. The uttering of a libel to the party libeled is clearly no publication for the purposes of a civil action. Thus “that material part of the cause of action in libel is not the writing, but the publication of the libel.”
The defamatory statement made in an affidavit, intended to be used in an affidavit, intended to be used in judicial proceedings is held to amount to sufficient publication without proof of the contents of the documents containing the libel being brought to the knowledge of any specific person other than the person defamed.
A wrong of defamation, as such consists in the publication of a false and defamatory statement concerning another person without lawful justification.
The gist of the offence of defamation lies in the dissemination of the harmful imputation. When a defamatory statement is published, it is not only the publisher, but also the maker, who becomes responsible and it is in that context that the word “makes” is used. It is of essence that in order to constitute the offence of defamation it must be communicated to a third person because what is intended by the imputation is to arouse the hostility of others. If a person merely writes defamatory words and keeps the writing with himself, the offence is not made out. Likewise if the libeler merely communicates the liable to the person defamed it does not constitute an offence under the said action though it may amount to an insult and may be punishable as such. The question whether the libel in fact has been communicated to a third person is material. It is not enough that the libeler posted it to a third person. It cannot be disputed that a communication to be defamed himself will not be a publication within the meaning of defamation law.